In torts, I often discuss the collateral consequences for same-sex couples not having recognized marriages from intentional infliction of emotional distress claims (which are limited to close family members in seeking third-party claims) to spousal immunity claims. Kentucky last week demonstrated the problem for such couples with the opinion below. Bobbie Jo Clary (left) and her domestic partner, Geneva Case, claimed spousal immunity on the basis for a civil union in Vermont in 2004. However, Judge Susan Schultz Gibson ruled that they could not claim spousal immunity in a criminal case because they do not have a marriage recognized under Kentucky law. It is an example of the type of “full faith and credit” cases that could lead to a showdown before the Supreme Court. Normally, states are required to give full faith and credit to the contracts from other states, including out-of-town marriages.

Complicating this case is that the couple had only a civil union rather than an actual marriage. In the murder trial of Defendant Bobbie Jo Clary, the women claimed the right to be immune from testimony but the prosecutors opposed the claim. Clary is charged with the murder and robbery of George Murphy in 2011. Clary reportedly confessed to Case (shown right) that she beat Murphy to death with a hammer but said that she was defending herself from a rape.

Gibson found that the civil union had not been converted into a marriage and thus did not meet the threshold requirement of a privilege assertion:

“At a minimum, the privilege granted by the Commonwealth of Kentucky would require that the parties be actually married. Ms. Case and the Defendant are not, under the law of either Kentucky or Vermont. The fact that Vermont may extend the marital privilege to couples who have entered into a civil union does not require Kentucky to do so.”

Since the couple went to Vermont for a civil union and did not covert the relationship to a marriage, the ruling is likely to stand on appeal. In 2009, a marriage option was added to Vermont law. Because privileges are narrowly construed under state law, the judge felt obligated to deny the claim in this case.

However, the final line of the decision is the most interesting. Vermont appears to extend the protection to civil unions, but the court states that no state is required to adopt the statutes of other state when it conflicts with its own laws. It is not clear if that is a reference to the use of civil unions as the basis for testimonial privilege (which is the most direct interpretation) or more broadly the recognition of a marriage status for the same-sex couple (which has broader full faith and credit implications). The Court states that “at a minimum” the couple must have a marriage license to claim such a privilege.

I would expect the ruling to be upheld based on the narrow rationale of the difference between a civil union and a marriage under Kentucky law. However, this type of conflict is likely to create a new front in ongoing effort to establish protections for same-sex couples. In that struggle, a murder trial is hardly the ideal context for a definitive challenge. Accordingly, same-sex marriage advocates may prefer to see this case decided on the basis of the narrow interpretation of state law.

“However, this type of conflict is likely to create a new front in ongoing effort to establish protections for same-sex couples. In that struggle, a murder trial is hardly the ideal context for a definitive challenge. Accordingly, same-sex marriage advocates may prefer to see this case decided on the basis of the narrow interpretation of state law.”

Interesting issue, but I highly doubt that spousal immunity for same-sex couples will create any new front in the gay and lesbian fight for equal rights. I don’t think the issue comes up enough, and as the prof pointed out, when it does, it usually is not public relations friendly. MHO.

DAN – GO TO THE HEAD OF THE CLASS!!!
Anytime the truth is not allowed to be available to the Jury, Justice is being corrupted by the Criminal element I call “The courthouse gang” – who’s obvious M. O. is to by ANY tricks and treachery, get the guilty off.

An interesting proposal which I’ll have to think about. My first reaction is that when one is married there is a certain expectation of confidentiality that one expects of their partner that is similar to the lawyer/client privilege. My wife knows ALL of my secrets because she is my wife and my best friend. For her to reveal them to strangers would seem to me to be a grievous breech of trust.
That said, I need to ponder this more because I can also see some points for your proposal.

As for this case I do think that the country is heading towards some new SCOTUS interpretation, at some point, as to the legal meaning of “full faith and credit”, because the political divide has become so wide.

Preservation of the family unit… Is the goal…. I imagine that it came about because some rich person did something illegal and wanted his spouse to be prohibited from telling what happened…. Sometimes legal fictions make bad precedent….

I think that redefining FF&C is more problematic than it appear although I will agree that the hard right Gang of Five has a couple of members that will no doubt do some astounding gymnastics to justify exactly that. However, if you you redefine the understanding of FF&C along political lines, you would basically gut the whole thing and run afoul of the 14th again. It’ll be interesting to see how it shakes out, sure, but I think in the end, the FF&C arguments will win in favor of same sex marriages.

I’ve known Judge Gibson for many years and she is one of the finer judges in our judicial circuit. The part of her opinion you cite is clear and well-reasoned. Literally, the privilege is the “marital” or “spousal privilege.” It isn’t the “civil union privilege.”
I’ve argued for years that all marriages in the United States are in fact civil unions, because, even if my partner and I go to the Cathedral of the Assumption (in Louisville) and are wed by the Archbishop himself, if we do not have a marriage license duly issued by the state, we are not married. The civil sanction represented by the marriage license results in a de jure civil union.
I’d be interested to know if other states have denied the spousal privilege to other members of Vermont’s civil unions.

I think the argument about spousal immunity is sideshow. The underlying Constitutional issue is more substantive than that one policy issue. The valid state interests in marriage are contractual. A license for marriage isn’t like a professional license or even a driver’s license. It’s a recordation with the state of a voluntary legal entry into contract so that upon dissolution or death certain legal rights, duties and obligations are recogized as being valid and assertable. Just because KY doesn’t recognize a VT civil union as a marriage doesn’t mean ipso facto that denial of rights should be made on KY law. The proper thing to have done would be to recognize VT laws as controlling. If VT recognizes spousal immunity in civil unions, that should be the end of the story. This wouldn’t be an issue if some people weren’t insisting that marriage be defined by religous tradition instead of recognized valid state interests in marriage (which are all contractual). Why? Because that’s how the conflict of laws operates and why choice of venue clauses are legal. The FF&C is pretty straight forward:

“Article IV, Section 1:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

If you undermine that for political reasons, you bring into question the validity of all manner of interstate transactions, from contracting to driver’s licenses to reciprocity on professional licensing. In the end, it’s a Federalism and a state’s rights issue that will be resolved by the Supremacy Clause and the FF&C Clause against the states.

Wheter or not spousal immunity is a wise policy decision or not is truly a separate discussion.

The protection of the States public policy is a valid reason for the State’s refusal to credit the judgement of another state, lest other states be able to dictate the public policy of other states.

“Full Faith and Credit does not . . . enable one state to legislate for the other or to project its laws across state lines so as to preclude the other from prescribing for itself the legal consequences of acts within it.”

“If VT had gone with marriage straight out of the box? This would be an entirely different story.”

Not at all unless you are proposing that a single state can commandeer for its own ends the legislature of all other States.
Already know from DOMA that the federal government cannot do that, neither can any single State.

By the least intrusive means – – Each State has the authority to decide for it self – – The State may recognise the acts of their sister states, no State is compelled to do so . . .

And they aren’t necessarily under that scenario, Monte. KY doesn’t recognize any form of same sex union and yet they are recognizing the civil union, are they not? And is not their saying spousal immunity does not apply because KY does not extend that priviledge to civil unions indeed depend on recognizing the underlying basic out of state legal relationship created in VT and their “conversion” constraint?

It’s not so simple an issue and, as JT said, not presented in the ideal context for the underlying Constitutional issue. Because of the speciic facts of this particular case, I too agree that the ruling here is likely to be upheld, but it also isn’t going to address the fundamental recognition of out of state same sex marriages either.

So how, do you think, would this Vermont “conversion” language have impacted on this couple in Kentucky if the issue was medical or successions? Can you construct a hypothetical that would be an acceptable vehicle to test the Kentucky/Vermont laws?

Civil unions and marriage are not the same, were never intended to be.
In WA state there is domestic partnership [civil union]. The clear distinction is that those in the DP are not subject to the federal marriage tax scheme so there is no ‘across state line’ recognition issue.

The least intrusive means for the State to afford its citizens protections and immunities within the boarders of its State is that the FF&CC is a “May” and not a “Shall”

Can easily find other conditions where the states [10th] general health and welfare policy trumps the FF&CC. New York is under court order, required to recognise the marriages of other countries, yet New York picks and chooses what marriage laws it will acknowledge.

As JT argues for the decriminalization of Polygamy in Utah, once that is accomplished, by the FF&CC is that act to become nationwide -?

Laws are never perfect, each state has their own view – – it is up to the, in this case ‘pair’ to know the laws of the state they live in or plan to move to – – never assume that what one state allows all others do also.

The least intrusive is for each state to determine their own internal workings regarding marriage.

The issue with same gender marriage is compounded by the simple unanswered matter.

The sisters raising the child together are as equal under the constitution as any other same gender pair raising a child together – – yet they are denied even the state protections only available under marriage, even if called civil unions or domestic partnerships . .
the !0th – States General Health and Welfare Policy

“Civil unions and marriage are not the same, were never intended to be.”

If that’s what you want to think, Monte.

But if you try to tell a family law judge that someone married by a JOP in a civil union isn’t really married, they’re going to find it really funny while concurrently being unamused. Just because local law treats a totally domestic scenario differently than a foreign jurisdiction isn’t a valid reason to totally disregard that foreign jurisdiction either.

As for the polygamy issue? That’s an area JT and I disagree on. It’s hardly a secret. Although personally I’ve always thought it was a bad idea, I used to be on the “for it” side (based in contract and freedom of association) until I read some studies provided by other posters here about the psychological and social costs of polygamy. I think the specific harm the practice causes far outweighs the argument that forbidding it isn’t a reasonable restriction on religious practice, but I will fight for your right to believe it’s what God wants from you even if I don’t think it should be allowed put it into practice.

_________________

Blouise,

Without knowing the specifics of what VT law allows related to medical decisions and the conversion from CU to marriage, simply a case where a VT same sex couple where one was denied the right to speak to a medical decision for an incapacited spouse while living in KY would probably go to the point.

I guess this shows the fallout of the civil union strategy that was played in elections years ago. At the time it seemed to be a way that would allow people who were on the fence on the issue to vote to allow civil unions when they couldn’t handle the notion of gay marriage. Now events such as this are showing the fractures in that thinking.

I wonder what the court would have done in the case of a couple who lived together and share resources for 15 years and in their state were considered common law married, but went to another state that does have common law marriage and these spousal immunities were claimed.

Jude, I don’t do much criminal work, but I would guess that the answer is, not unless it was preserved for appeal. IOW, not unless the privilege was invoked or not otherwise waived at the trial level. I am sure our fine legal scholars will correct me if I got it wrong.

Quote from decision included in main article:
“At a minimum, the privilege granted by the Commonwealth of Kentucky would require that the parties be actually married. Ms. Case and the Defendant are not, under the law of either Kentucky or Vermont. The fact that Vermont may extend the marital privilege to couples who have entered into a civil union does not require Kentucky to do so.”
*

That’s the definitive argument when people argue that civil unions for gays are just as god as marriage. No it isn’t and this kind of dispute is on a fast track to the SCOTUS to settle the question once and for all. If Congress and the President had any respect for civil rights they would put an end to this kind of question with a legal declaration of universal civil rights for gays. As it stands the worst SCOTUS in a century is going to end up making the law on this and there’s no guarantee it going to be good law.

Gene’s quote sounds about right to me:

“Article IV, Section 1:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

“If you undermine that for political reasons, you bring into question the validity of all manner of interstate transactions, from contracting to driver’s licenses to reciprocity on professional licensing. …”

If you look at it that way it appears that there is an overriding interstate commerce interest in the matter also; that interest is broad and deep and marriage affects many economic concerns such as, at one time it was easier for married couples to get home loans than non-married couples or single purchasers.

This case does highlight why the civil union cop out is not the answer. I have to agree with Prof. Turley and Gene that this case might not provide the proper fact situation to properly test the Full Faith and Credit argument.

If my memory serves me correctly, Civil Unions fell under that “Separate but Equal” fallacy. At the time, there was such brouhaha and wailing about the word marriage, and all the horrendous developments and grand catastrophe that would occur should the legislature use that sacrosanct term. So, “Civil Union” was a compromise to get the legislation passed.

Obviously, the sky did not fall, and some really great people were able to make their commitment to each other legal, and reap some of the benefits granted to those who were “married”. Vermont has since removed “Civil Unions” from the lexicon. Now any two people who want to legally commit to each other may do so. (And be just a miserable as the rest of us. Ha! Sorry… it is so Me to toss in a snark moment. Can‘t resist.)

Slart: Can local (state level) prosecutors unilaterally immunize one against prosecution for federal crimes? Can they, for example, keep the IRS from auditing you, can they keep you off the no-flight list?

If they cannot immunize me against the actions of the federal government, and I do not have to tell them why I am pleading the fifth, and they do not already know what I know, then they cannot claim I am not incriminating myself by testifying.

I think I could also refuse on principle; that I do not wish to repeat something “as a confession” that I believe may have been said with sarcasm, or as a joke.

As always, for other readers, I am not a lawyer, but I do not see how they can guarantee Geneva Case immunity from ALL kinds of prosecution or investigation.

Very good comments on this very interesting dilemma. Here are my two cents:

1. The decision was correct and can be upheld on appeal without regard to the Full Faith and Credit Clause.

2. Had this couple been legally married in Vermont, the result would be different. Any effort by Kentucky to deny recognition of the Vermont marriage on the grounds of Kentucky public policy would run afoul of the Fourteenth Amendment.

3. I have previously argued that all marriages are nothing more than civil unions. The civil union laws were adopted because religious groups have successfully convinced lawmakers that the word “marriage” describes a relationship that precedes positive law and may not be legislatively altered. This is nonsense, of course. I have performed a number of marriages as a notary public, and as far as I can tell, none of them was imbued with divine significance.

I suspect that, while the prosecutor and/or the judge might need to carefully parse any grant of immunity, ultimately the dodge you are suggesting wouldn’t work, but I’m not a lawyerly type either… There’s also the issue of whether any immunization protects you from prosecution or just bars your testimony from being used to prosecute you and I don’t really have any idea what sort of dealmaking discretion a prosecutor has (unless Law & Order was correct… ;-) ). Maybe someone who knows something about the law could weigh in… *wink* *wink* *nudge* *nudge*, “know what I mean?”

Blouise,

I think Gene makes a fine shoulder angel—I have a simple rule: I do something and if Gene kicks me in the head, I do something else. What could be easier than that?

Mike A.,

Welcome to the end of the Second Millenium—I’m sure you’ll get to the third before too long… :-P

(comment from another thread)
It would be so much better if the privileges of same sex unions were defined independently from marriage which traditionally came into use only in reference to opposite sex unions.
==========================================================

this ruling shows why same sex couples want marriage and not some separate and (not entirely) equal same sex union.

Why is it that I don’t understand how to do anyone’s instructions. In other words what the hell are you all talking about? Is it something about the name Mike that makes a person technologically backward? Did you understand those instructions Pete? Yet I can use at least one emoticon. :)

It depends on the deal vis a vis immunity. It can be absolute or qualified. The prosecution has a fair amount of discretion on what they can offer. Rarely is it absolute though. You’d have to be bringing something huge to the table. It’s usually transactional and may be only partial.

Most people think Michael is a biblical name of Hebrew origin meaning “he who is like God”, but it’s actually a much older name. It comes from Sumer and means “he who does not grok the abacus”. Just so, the name “Larry” is often thought to derive from the Latin Laurentum (one who wears a laurel wreath) actually, it’s Egyptian and means “geometry is Set [roughly the Devil]”.

But, but, but . . . we all know pete will use his new great powers with great responsibility!

It will be in service of being responsible for funny, but responsible is responsible. He is a responsible artist. And art is art, isn’t it? Still, on the other hand, water is water! And east is east and west is west and if you take cranberries and stew them like apple sauce they taste much more like prunes than rhubarb does. Now, uh… now you tell me what you know. :D

I thought Grok was an onomatopoeia that meant “Sound made by angry vengeful muddy slough when a trapped, knee deep fisherman successfully pulls his boot out of muddy snare, causing the mud’s enraged vocalization of Grrrraawwwk”

Grok you. I much preferred “Starship Trooper” and especially loved “Door into Summer”, but then Pynchon floated my boat back then, as did Vonnegut and so it goes. Anyhow I’m not math challenged like Larry, it’s just like my computer Literacy got overtaken at the end of the last century.

Blouise,

The words you use in Scrabble are potent enough that you don’t need even more.

Door Into Summer and Starship Troopers are two of my absolute favorite Heinlein stories (I read far more of his books at a formative age than was probably good for me…). Throw in The Moon is a Harsh Mistress and you’ve definitely got my top 3 (well, add Double Star and call it the top 4… our four weapons are surprise, fear, ruthlessness, and an almost fanatical devotion to the Pope…

Get groked? Don’t mind if I do! :D But computers change every week it seems like. Don’t get me started on the switch from BIOS to UEFI. It’s been annoying enough to make me want to use a typewriter taped to a TV instead. I know at some point, probably soon, I’m simply going to quit caring about the details of how it works and only care about if it does what I want it to.

Slarti,

Nobody expects the Spanish Inquisition, but our chief weapons are fear, surprise, ruthless efficiency, an almost fanatical devotion to the Pope and nice red uniforms. You think you are strong because you can survive the soft cushions? Biggles! Get the comfy chair!

“Door Into Summer and Starship Troopers are two of my absolute favorite Heinlein stories (I read far more of his books at a formative age than was probably good for me…).”

Slarti,

I’ve always known we were kindred spirits since we started getting in touch off blog. What is interesting about it is that I’ve got at least 20 years on you so we hail from different generations, but Heinlein is timeless, even if if time surpasses the ostensible dates of his tales.

Strictly speaking I’ve never needed help with snark. My technical deficiencies aren’t an age thing since OS out-dates me age-wise, but then again like you he’s a scientist. Gene could well have been if he wanted to and Darren keeps surprising us day by day as he reveals more and more of his skills. Blouise is an artist whose art requires certain intellectual adeptness. Now Pete, the blogs master of snark, has far more skills then he let on thus far. As for me, while I have some minor scientific knowledge, it has always been about the emotions and I’m lazy when it comes to details. When I needed to become computer literate for work way back then I did it, but after awhile I no longer needed to know DOS etc. and could just let myself play. I know most people seem to see me as serious, but in my gut I’m just a kid who likes to play all the time. The serious demeanor, even on line is merely self protection.

“I know most people seem to see me as serious, but in my gut I’m just a kid who likes to play all the time.”

That’s why we love you, Mike. You’re the kid on the playground always up for a game of kickball. :D

And I agree on pete. I honestly think he could write comedy professionally if he wanted. His timing and sense of the absurd are impecible. One doesn’t develop that without having something else interesting going on “under the hood”.

Missed you in scrabble Blouise. We are still living in Ted Cruz land….. House has not sold yet. Got an email from battleground Texas stating that Wendy Davis is running for governor. i want to go to the announcement in Fort Worth next week as they are trying to draw a large crowd. In the end she will probably lose to Abbot but it will be an epic Texas brawl….. Planned parenthood versus the fundamentalist churches.

Sorry about Scrabble but I did win the local tournament … grand prize was all I could eat and drink at the favorite local pub which should tell you all you need to know about why I love to play with this group. Be back tomorrow.

Saw that crazy Cruz had to vote against himself today … what a complete idiot. I don’t agree with Reid on much of anything but am with him 100% when he says “A giant waste of time!”

As to Davis … I’ll contribute … she did well in her re-election against a well connected opponent but you are right … her chances are not great. Of course … it will be interesting to see if the fundies have lost some of their influence.

News item. George H. W. Bush official witness for same sex wedding. The couple run a store near his home in Maine. Item with photo. Notice the socks. When you get to be a “certain age” you can get away with making your own fashion statement.